The European Commission provides guidance on SEP licensing but leaves open issues

On November 29, the European Commission published its long-awaited “Communication setting out the EU approach to standard-essential patents” (SEPs). The stakeholders were expecting from the Commission in-depth guidance on the definition of fair, reasonable and non-discriminatory (FRAND) terms in the context of SEP licensing. However, the Commission did not address all the open issues, leaving room for continued legal uncertainty on the exact meaning of FRAND. Continue reading “The European Commission provides guidance on SEP licensing but leaves open issues”

SEP licensing and competition law: DOJ and European Commission bless a new “patent-friendly” approach

Recently, the debate on the applicability of competition law to the licensing of standard-essential patents (SEPs) has come to a turning point. Indeed, both the US Department of Justice (DOJ) and the European Commission are making an attempt to provide a final answer to the following questions:

1) should the conduct of SEP-holders be subject to the application of competition law?

2) should standard-setting organisations (SSO) provide guidance on the meaning of “fair, reasonable and non-discriminatory” terms (FRAND), or would that guidance amount to a price-fixing cartel?

Continue reading “SEP licensing and competition law: DOJ and European Commission bless a new “patent-friendly” approach”

BREAKING: the CJEU sets new criteria to assess excessive pricing under competition law

Yesterday the Court of Justice of the European Union ruled on one of the hottest antitrust issues of 2017: excessive pricing.

It was Commissioner Vestager in late 2016 who set the antitrust radar of the European Commission on these conducts, which were considered a bit like unicorns until last year: traces of them were visible only on old handbooks. Following the Commissioner’s speech, the European Commission launched an investigation against Aspen Pharma for alleged excessive pricing in May 2017 (everywhere but in Italy, where Aspen had already been fined by the Italian Competition Authority, see here).

Continue reading “BREAKING: the CJEU sets new criteria to assess excessive pricing under competition law”

Pills of competition law: Aspen, Uber and e-commerce

uber

These are busy days for EU competition law.

Today, the European Commission has come back to the old good pharmaceutical market and opened an investigation against Aspen for having charged excessive prices on its “off-patent” drugs (the same case has already been decided in Italy by the Italian Competition Authority in 2016, see here). This may be seen as a follow up to Margrethe Vestager’s recent speeches against excessive prices (here and here). However, even more recently, Advocate General Wahl delivered an opinion where he stated that excessive pricing may occur only in regulated markets with high barriers to entry, since in a free and competitive market high prices would attract new entrants and would not give rise to competitive issues (§ 48, see here for further remarks). Therefore, a question arises: where are the barriers to entry in the Aspen case, insofar as Aspen does not own any patent (already expired for years) and third parties are free to access the market? Continue reading “Pills of competition law: Aspen, Uber and e-commerce”